Commonwealth v Woodhill [1917] HCA 43; (1917) 23 CLR 482 (5 September 1917)

The appellant, which was defendant to a writ issued by the plaintiff, who is now respondent, sought to set aside that writ. The application was referred to the Full Court of New South Wales, and by them dismissed. It comes to this Court on appeal.

A notification in the Commonwealth Gazette dated 1st May 1915 compulsorily acquired under the Commonwealth Lands Acquisition Act 1906 certain lands at Jervis Bay, then in the State of New South Wales, but now in Federal Territory. On 25th August 1915 the respondent made his claim for compensation. An offer made by the Minister of State for Home Affairs was refused in writing by the respondent on 5th May 1916. Under secs. 35 and 36 of the Lands Acquisition Act before mentioned the respondent's cause of action arose on that day, not earlier.

The Jervis Bay Territory Acceptance Act (No. 19 of 1915) was assented to on 12th July 1915, and commenced on the date fixed by Proclamation (see sec. 2), namely, 4th September 1915. Consequently, under sec. 4, sub-secs. 1 and 2, of the Jervis Bay Act the land acquired by the Commonwealth was within territory acquired by the Commonwealth for the Seat of Government, "to the intent that all laws ordinances and regulations (whether made before or after the commencement of this Act) which are from time to time in force in the Territory for the Seat of Government" should so far as applicable also apply to and be in force in the accepted territory. As the cause of action arose in territory added to the area acquired for the Seat of Government, and deemed part of that area, with respect to a piece of land in that territory, the question arises whether the Supreme Court of New South Wales has jurisdiction to entertain an action for compensation in respect of that piece of land.

The Seat of Government Acceptance Act of 1909, sec. 8, gives the High Court, until the Parliament otherwise provides, the jurisdiction, within the area surrendered to and accepted by the Commonwealth, which immediately before the proclaimed day (1st January 1911) belonged to the Supreme Court of the State and the Justices thereof. Sec. 10 must be read with and subject to sec. 8. That jurisdiction, then, was from January 1911 in the High Court, and not in the Supreme Court, at any rate in respect of actions local in their nature. The strength of sec. 8 is increased by the fact that by sec. 11 of the Seat of Government (Administration) Act of 1910 the inferior Courts of New South Wales are to continue to have for the enforcement of all laws in the Territory and the administration of justice therein the jurisdiction therein which they had before the Administration Act. The superior Courts of that State are not given any similar jurisdiction. Upon the surrender and acceptance of the Seat of Government Territory, of which the Jervis Bay annexe must be deemed to be part, the whole of the Territory, original and additional, became subject to the exclusive jurisdiction of the Commonwealth (Australian Constitution, sec. 111). Hence it has not been, since the surrender and acceptance, any part of a State. Before the material date the State of New South Wales had ceased to have any territorial right over it, legislative or judicial, or any forensic jurisdiction over cases arising therein, except perhaps so far as such jurisdiction could be claimed in cases of a transitory nature.

Sec. 37 of the Lands Acquisition Act 1906 allows an action for land compensation to be instituted by the claimant against the Commonwealth in the High Court or in any State Court of competent jurisdiction. That such an action is in its nature local appears to me to be shown not only by its general character but by the combined effect of secs. 12, 28, sub-sec. 1, pars. (b) and (c), 29, 30, 42, and 45, sub-secs. 2 and 3. The matter involved in such an action is in substance the failure to give a sufficient price for the land, including in certain cases damages for severance and for depreciation. It was therefore a local matter arising outside the State of New South Wales, in which the Courts of that State are without jurisdiction, so that the term "competent jurisdiction" does not apply to them in local actions. See British South Africa Co. v. Companhia de Mo¸ambique[1]; Doulson v. Matthews[2]; also Potter v. Broken Hill Proprietary Co. Ltd.[3]. At the time of the passage of this Act there was no actually defined Seat of Government area. But whatever jurisdiction the Supreme Court of New South Wales had in local actions before the passing of the Seat of Government Acceptance Act of 1909, I am of opinion that sec. 8 of that Statute took away, as the Federal Parliament had power to take away, from the Supreme Court the jurisdiction which it previously had in such cases within the Territory, and left it with the High Court alone, and that the Jervis Bay Territory Acceptance Act of 1915 had the effect of dealing similarly with the territory validly added by that Act to the Seat of Government Territory, so that after 4th September 1915 sec. 8 equally applied to the Jervis Bay Territory as a law "in force in the Territory for the Seat of Government." It is true that the Judiciary Act of 1903 in sec. 56 allowed a person making a claim against the Commonwealth in contract or tort to bring a suit against the Commonwealth in the High Court or in the Supreme Court of the State in which the claim arose. In that section "making any claim" clearly means having any cause of action, but the cause of action in this case, I repeat a local one, did not arise until a time at which the land in question was not in New South Wales, so that the claim did not arise in that State. Of course it is not necessary to decide whether the present claim is "in contract or in tort," and I assume that it is in one or other of those categories, merely for the purpose of dealing with the argument which the respondent's counsel raised upon that section.

Reference was made to a passage in the judgment of Lord Selborne in the case of Sirdar Gurdyal Singh v. Rajah of Faridkote[4]. There his Lordship speaks of the general rule "that the plaintiff must sue in the Court to which the defendant is subject at the time of suit ...; which is rightly stated by Sir Robert Phillimore ... to lie at the root of all international, and of most domestic, jurisprudence on this matter." His Lordship goes on to say: "All jurisdiction is properly territorial, and extra territorium jus dicenti, impune non paretur." Since the land in question was not territorially within New South Wales at the time when the cause of action arose, the passage seems to be much more against than in favour of the respondent. Looking once more at sec. 37 of the Lands Acquisition Act of 1906, it is as well to mention the result which the argument of the respondent on that section would have if carried to its logical conclusion. When the land ceased to be within the territorial jurisdiction of New South Wales, the Supreme Court of that State ceased to be a Court "of competent jurisdiction" within the meaning of that section (see Judiciary Act, sec. 39, sub-sec. 2), or it did not so cease. If it ceased, the argument for the respondent fails. But if it did not cease, if the cause of action was, as the respondent contends, transitory and not local, that must have been because the Supreme Court had some "competent jurisdiction" apart from its territorial jurisdiction. If that were the case, it could have no more jurisdiction conveyed by the term "competent" than the Supreme Court of any other State, and to suppose that the Federal Parliament intended to empower the Supreme Court, for instance, of Western Australia, to determine the value of land at Jervis Bay after the Seat of Government Acts and the Jervis Bay Acts became of force, is rather beyond serious consideration.

I am of opinion that at the time this cause of action arose the Supreme Court of New South Wales had ceased to have jurisdiction to entertain it; that within that territory, as within the whole of the bounds assigned to the jurisdiction of the Seat of Government, no claim for land compensation could be brought in any superior Court other than the High Court; and that the appeal must be allowed with costs and the writ set aside with costs.

I agree that this appeal should be allowed. The only material fact, in my opinion, is that at the time the writ was issued the land acquired was no longer in the State of New South Wales.

The learned Judges of the Supreme Court, though agreeing that the Court had jurisdiction, reached their conclusion by different roads. Pring J. rested solely on the interpretation of sec. 37 of the Lands Acquisition Act 1906, and thought that wheresoever resumption took place under the Act, the action for compensation could be brought in the Supreme Court of any State, because every such Court has jurisdiction to try that class of action when arising in the State. Sly J. and Ferguson J. decided that on the facts the jurisdiction of the Supreme Court had attached when the resumption took place, the land then being within New South Wales, and that nothing has taken away that accrued jurisdiction. They expressly avoided deciding the larger ground taken by Pring J. A third view was put forward in argument on behalf of the respondent. It was that which Pring J. did not decide, but which his Honor said would in any case be overcome by the words of the section. The view was that such an action is transitory, and for this reason—namely, to assist the common law conception—the words in sec. 37 "State Court of competent jurisdiction" should be held to apply to the Supreme Court of any State, as well as for the reason given by Pring J. that they may, if necessary, be read as overcoming the common law conception. None of these three views can, in my opinion, be maintained.

It is common ground that as the right to compensation arises under a law made by the Parliament, the jurisdiction to determine it is within the judicial power of the Commonwealth (sec. 76 of the Constitution). It is also common ground that unless by virtue of some law conferring the right to proceed against the Commonwealth in such a matter, the plaintiff cannot maintain his suit (sec. 78). His right to do so must, then, depend on the true construction of the various Commonwealth Acts relating to the resumption of land, and ultimately the question comes down to what Pring J. dealt with, namely, the construction of sec. 37 of the Lands Acquisition Act of 1906. Put concretely the question, from all standpoints, must be: "Is the Supreme Court of New South Wales a State Court of competent jurisdiction within the meaning of that section, in relation to a claim for resumption of land which at the time of writ issued is not within New South Wales?" If the wide view taken by Pring J. is correct, it is. But then, too, the Supreme Court of every other State in the Commonwealth would by virtue of the same reasoning have equal jurisdiction in relation to the same resumption.

In interpreting the Lands Acquisition Act, the fundamental conception to be borne in mind is that the acquisition of land which it permits is an exercise of high sovereign power. It is the exercise of legislative power in respect of a constitutional right to acquire proprietorship, which is entirely distinct from the ordinary legislative control of the conduct of individuals in the exercise of their own rights. But being a sovereign act, not in any way dependent upon the law of any other jurisdiction, that act itself, and its conditions and attendant consequences involving all the relations between the sovereign and the former owner, including the mode of compensating him and the tribunal for ascertaining the amount of compensation, must—subject to the provision as to "just terms" in placitum XXXI. of sec. 51 of the Constitution—be within the discretion of the Commonwealth Parliament. The circumstances of such a transaction are not severable so as to be transitory as a contractual right is transitory. It is inherently wrong to attribute to the relations so created a quality which would enable the Courts of any other jurisdiction—say, France—to determine the obligations arising from such an acquisition as between the Commonwealth and the individual owner, or between the Commonwealth and a State if the land were Crown lands of a State. It is equally true, if we substitute another Australian State for France. And the same considerations would apply to a State resumption. For instance, a New South Wales resumption is not justiciable in Victoria. Therefore, the widest of all the three propositions—namely, that advanced at the Bar in aid of the other two—is fundamentally unsound.

Then comes the view of Pring J. which, for the purpose of argument, concedes that unsoundness, but rests on the permission of the Parliament. This involves an examination of the structure of the Statute, which will apply to both the remaining views. No doubt the general locality of a Commonwealth acquisition is the whole of Australia, if we regard the matter from the standpoint of Commonwealth jurisdiction. But the Parliament has, in framing its enactment, so distinctly recognized the principle of State locality that the larger view cannot be maintained. The Act, when read as a whole, is found to be in effect a code dealing specially with the matter and to be framed upon the principle that, except where the High Court is invoked, the Courts of the jurisdiction where the title to the land arises shall determine all questions in connection with the matter.

The scheme of the Act, so far as now material, is as follows:—It enables the Commonwealth to acquire lands compulsorily from a State or an individual (as well as by agreement), and, if compulsorily, by notification. Sec. 17, on which the majority in the Supreme Court evidently based their opinion, says that upon publication of the notification "the title of the State to any Crown land specified in the notification shall be taken to have been converted into a claim for compensation." Observe first, that a State is placed in precisely the same position as an individual, and also that the words "claim for compensation" mean "property" not a demand. Ownership in land is converted into personalty, namely, what is there called a "claim for compensation," in the sense of a right to compensation. That is then the former owner's transformed right. This is borne out with particularity in secs. 26 and 27. Division 2, commencing with sec. 32, deals with the mode of asserting and enforcing that right. Sec. 32 says: "Any State or person claiming to be entitled to compensation under this Act may make a claim for compensation." It must be in writing, and served on the Minister, and is then deemed to be "made." A claim may or may not be "made." If a claim is made, the Minister may agree with the claimant—individual or State. The Minister has up to one hundred and twenty days to examine the claim and notify that he agrees, or that he disputes the claim. If he agrees, then no resort to a Court is necessary or possible to determine the compensation. If the parties do not agree, the "claim," that is, the written claim, becomes a "disputed claim for compensation." Then, and then only, is curial determination possible. The claimant (State or individual) may by sec. 37 institute an action for compensation against the Commonwealth in the High Court or—and here come the important words—"in any State Court of competent jurisdiction," subject to certain provisions in the same section mentioned, which I shall presently refer to. If, for any reason, no proceeding is instituted by the claimant within six months—and the dispute is not otherwise settled—the Minister by sec. 38 may apply to have it determined either by the High Court or by "a State Court in which an action for compensation might be instituted." In other words, the Courts are to be the same, whether the claimant sues or the Minister applies. Consequently, if sec. 37 means that the Court of any State whatever can be invoked by a claimant State (for instance), the Minister may equally have the claim (say) of New South Wales determined by the Supreme Court of Tasmania, or by any Local Court in Tasmania, according to the amount claimed. And by sec. 38 (4) the decision is final and conclusive and without appeal.

Before accepting that construction, let us look further at the Act. It may be that the claimant has not within six months made a claim for compensation, and has not applied for further time to do so. In that case there is no "disputed claim," and secs. 37 and 38 do not apply. Sec. 39 then operates. The Minister may apply to a Court to have the matter determined. But to what Court? No claim being made, there is so far nothing to guide one as to amount, and therefore no one can say whether any inferior Court would ordinarily have jurisdiction. So the section provides that the Minister may apply to the High Court or the Supreme Court, if the Minister considers the compensation awarded will be more than £500. But if he considers it will not amount to more than £500, he shall apply to a County, District or Local Court—that is, the highest inferior Court in the several States. Sec. 39, dealing with circumstances which do not themselves indicate which Court is one of "competent jurisdiction," itself fixes a guide.

Now sec. 39 helps materially to interpret secs. 37 and 38—these dealing with the alternative case. Sec. 39 uses the words "the Supreme Court." By the interpretation section, "the Supreme Court" is defined in the absence of contrary intention (and here there is none) to mean "the Supreme Court of the State in which the land ... is situated"; consequently no application could be made under that section to the Supreme Court of another State. The Act, however, does not so define County Court or District Court or Local Court. And so, if the view presented by the appellant supporting the opinion of Pring J. be applied to sec. 39, an application respecting a matter not exceeding £500 could be made to the County Court of Victoria as to land in Western Australia, though, if over £500, the Supreme Court of Victoria, by reason of the definition, could not entertain it. Reading sec. 39, then, with the interpretation of "Supreme Court" and all that it implies, and reverting to secs. 37 and 38, and reading sec. 37 right through, it seems plain that the expression "State Court of competent jurisdiction" means a State Court of the State where the land is situated, and having jurisdiction up to the amount claimed. Sub-sec. (c) of sec. 37 directs the Supreme Court to have regard to the fact that the action might have been brought in "a lower Court." That must mean a lower Court of that State. If the respondent's view were right, it is difficult to imagine why the Legislature, so careful as to costs in a lower Court, said nothing about the extra costs of bringing the other party into the Supreme Court of a distant State, to which all the witnesses might have to travel thousands of miles.

Lastly, we come to the narrower ground accepted by Sly and Ferguson JJ. The jurisdiction of a Court may be understood in more senses than one. We may speak of a Court's jurisdiction in a general sense, as when we say the Supreme Court of a State is a Court of general jurisdiction. But if the word is used in relation to a specific cause, the Court has jurisdiction only if seised of it. The Supreme Court of New South Wales was not seised of this matter before the writ was issued, which was on 7th March 1917. On 4th September 1915 the land had ceased to be part of New South Wales, and, after that, there was no Court of a State that had jurisdiction under sec. 37 of the Lands Acquisition Act. It needed some other provision of the Commonwealth Parliament to confer such a jurisdiction. But admittedly there is no such provision. The Jervis Bay Territory Acceptance Act 1915 (No. 19 of 1915) applies the provisions of the Lands Acquisition Act 1906 to land acquisition within the territory from private persons. It also, by sec. 4 (3), incorporates (inter alia) sec. 8 of the Seat of Government Acceptance Act 1909 (No. 23 of 1909), which within the territory transfers to the High Court the jurisdiction which the Supreme Court of the State theretofore had.

As to jurisdiction inferior to that of the Supreme Court, by sec. 11 of the Seat of Government (Administration) Act 1910 (No. 25 of 1910) it is vested (sub modo) in the inferior State Courts of New South Wales. Therefore the Supreme Court of New South Wales is eliminated entirely as to the territory.

The result is, then: (1) the claim is not transitory; (2) sec. 37 does not confer jurisdiction, irrespective of situation of the land, on every Supreme Court and on every inferior Court all over Australia provided the "amount" claimed is within its ordinary jurisdiction; (3) the jurisdiction in this particular case did not attach to the Supreme Court of New South Wales before 4th September 1915, and could not attach then or afterwards.

I am authorized by my learned brother Rich to say that he agrees in this judgment.

Appeal allowed. Order appealed from discharged with costs and writ set aside. Respondent to pay costs of appeal.

Solicitor for the appellant, Gordon H. Castle, Crown Solicitor for the Commonwealth.

[1] (1893) A.C., 602.

[2] 4 T.R., 503.

[3] [1906] HCA 88; 3 C.L.R., 479.

[4] (1894) A.C., 670, at p. 683.

High Court of Australia

Commonwealth v Woodhill [1917] HCA 43; (1917) 23 CLR 482 (5 September 1917)

HIGH COURT OF AUSTRALIA